Miranda Rights Get Conservative Treatment by Supreme Court

The high court has made clear it’s not going to eliminate the requirement that police officers give suspects a Miranda warning, so it is tinkering around the edges, said Jeffrey L. Fisher, co-chair of the amicus committee of the National Association of Criminal Defense Lawyers.

“It’s death by a thousand cuts,” Fisher said. “For the past 20-25 years, as the court has turned more conservative on law and order issues, it has been whittling away at Miranda and doing everything it can to ease the admissibility of confessions that police wriggle out of suspects.”

The Miranda rights have been tweaked numerous times over the past decade or so, many times with overwhelming if not unanimous support from the justices, which spans liberal and conservative minds. This latest change requires those taken into custody to break their silence in order to inform the police that they will in fact be remaining silent. Simply remaining silent will not count as observing one’s right to remain silent. It passed on a 5-4 vote.

I agree with Justice Sonia Sotomayor who said about the ruling:

“Criminal suspects must now unambiguously invoke their right to remain silent — which counter intuitively requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.“

It’s hard to see how this is a conservative move, though. Conservative in terms of the current political climate in the GOP and Tea Parties, yes; but, it doesn’t seem so as far as small-c conservatism goes. This change gives more power to the state, to the authorities, to the police, and while it doesn’t necessarily take away any rights from the individual, it does make those rights more confusing to understand and enact, and, given the lack of civics knowledge amongst the general populace, puts those who are deemed innocent until proven guilty by a jury of their peers at the disadvantage.

For a political movement that champions smaller government and individual freedoms, this move is just the most recent in a long line of bi-polar decisions that undermine personal liberties under the guise of added security to ensure their passing — the Patriot Act, the Arizona immigration bill, etc. — that actually run contrary to the notion of having an empowered citizenry against a limited government.

3 comments

In point of fact the issue stems from the fact that it has been presumed in recent years that all interrogation must cease once the suspect invokes their right to silence – a presumption with little or no basis in law but one that has become the accepted norm.

That being the case, it makes legal sense to demand that the suspect actively invoke their presumed right to have the interrogation end which is the sole point under contention in this case.

Regardless of the legality, it is counter intuitive to break silence to invoke one’s right to silence. I make it a point to be a well-informed member of the population and while I hope I won’t need to invoke my rights, I will be sure to know to vocally express my desire to remain silent should I need to. Unfortunately, a strong majority of the population may find this entire situation confusing and mistake being silent for actually saying that they will be silent.

But perhaps that will be best remedied through better education rather than changing of the Miranda laws. Either way, my greater point was that this development sways the power toward the government, not the individual, and how that doesn’t seem to be a conservative notion.

Not being a great fan of increased government power I would actually normally agree with you. In this case, however, the ruling makes sense because we as a people have, by and large, decided that “the right to remain silent” means that the police have to stop asking you questions rather than that you are not compelled to answer them.

This is very much like the fact that you must ask for an attorney in order to shut down questioning until one arrives.